Criminal Defenses
Class #5
Self-defense
• Every State in the US recognizes a defense for the use of force,
including deadly force
• District of Columbia v. Heller, US Supreme Court (2008) holding that
the Second Amendment to the US Constitution provides an individual
the right to possess a firearm and to use that weapon for traditional
lawful purposes, including self-defense within the home
• United States v. Peterson
• Rule : at common law, an non-agressor is justified in using force upon
another if he reasonably believes that such force is necessary to
protect himself from imminent use of unlawful force by the other
person
– Three components :
• Necessity requirement
• Proportionality requirement
• Reasonable-belief rule
– Deadly force is only justified in self-protection if the actor
reasonably believes that its use is necessary to prevent imminent
and unlawful use of deadly force by the aggressor
The « non-aggressor » limitation
• An aggressor has no right to a claim of
self-defense.
• The issue of whether a defendant is the
aggressor is ordinarily a matter for the jury
to decide.
Self-defense : necessity
component
• Force should not be used against another
person unless, and only to the extent that,
it is necessary
• Self-defense is limited at common law to
imminent threats
Self-defense : Proportionality
component
• A person is not justified in using force that is
excessive in relation to the harm threatened:
– A person may use nondeadly force to repel a
nondeadly threat or a deadly threat
– A person may use deadly force to repel a deadly threat
• The use of deadly force is always proportional against a threat
of egregious injury.
– However, a person is not permitted to use deadly force
to repel what he knows is a nondeadly attack, even if
deadly force is the only way to prevent the battery
Self-defense: Reasonable belief
component
• People v. Goetz
• A self-defense claims contains a subjective and
an objective component :
– First, the jury must determine that the defendant
subjectively believed that he needed to use force to
repel an imminent unlawful attack
– Second, the defendant’s belief in this regard must be
one that a reasonable person in the same situation
would have possessed
• The defendant’s belief can be objectively reasonable even if
the appearances prove to be false
The Zimmerman Case
• On the night of February 26, 2012, in Sanford, Florida,
United States, Georges Zimmerman fatally shot Trayvor
Martin, a 17-year-old African-American high school
student.
• Zimmerman, a 28-year-old mixed race Hispanic man,
was the neighborhood watch coordinator for the gated
community where Martin was temporarily living and
where the shooting took place. Zimmerman shot Martin,
who was unarmed, during an altercation between the
two.
• Zimmerman was charged with Martin's murder but
acquitted at trial on self-defense grounds. The incident
was reviewed by the Department of Justice for potential
civil rights violations, but no additional charges were
filed, citing insufficient evidence.
« Deadly force »
• Statutes vary in their definition of the term
« deadly force »
– Either likelihood that the force will result in
death or serious bodily injury
– Either a mental-state element is included in
the definition
– Either include both a mental-state
requirement and the likelihood of a result
The issue of retreat
• « No-retreat » rule : a majority of jurisdictions apply the
rule according to which a non-aggressor is permitted to
use deadly force to repel an unlawful deadly attack even
if he is aware of a place to which he can retreat in
complete safety
– « Stand your ground » Florida rule and the Zimmerman case
• A minority of jurisdictions provide that an innocent
person threatened by deadly force outside one’s home
must retreat rather than use deadly force if he is aware
that he can do so in complete safety
– However, the practical effects of these conditions is that a
person under attack rarely is compelled to retreat, especially
when the aggressor is armed with a gun
The « castle » exception to the
retreat rule
• A non-aggressor is not ordinarily required to
retreat from his dwelling, even though he knows
that he could do so in complete safety, before
using deadly force in self-defense
• Arguments in favor of this doctrine ?
• What about co-dwellers?
– Many retreat jurisdictions in recent years have grown
more sensitive to the problem of domestic violence
and have adopted the rule that the assailant’s status
as a co-dweller is irrelevant, i.e., the innocent person
need not retreat from the home, even if the aggressor
also lives there.
Nature of the threat : imminent,
unlawful force
• Imminent
– The danger must be pressing and urgent
• Unlawful
– A person may not defend himself against the
imposition of justified and lawful force.
• Reasonable force applied by a police officer in the
performance of his duties is justified
• Conduct that would constitute a tort is unlawful
even if the actor could escape liability or conviction
by assertion of a valid defense
Model Penal Code : Self-defense
• Force: A person is justified in using force upon
another person if he believes that such force is
immediately necessary to protect himself against
the exercise of unlawful force by the other
individual on the present occasion.
– Reasonableness requirement is added by another
provision of the Code
• Deadly force: Deadly force is unjustifiable unless
the actor believes that such force is immediately
necessary to protect himself on the present
occasion against : (1) death, (2) serious bodily
injury, (3) forcible rape, or (4) kidnapping
Example
• Suppose that V, an abusive husband, tells D, his
wife, while they are in the kitchen, that he is going
to the bedroom to get a gun and kill her. In
response, V picks up a kitchen knife and when V
turns his back on her to go to the bedroom to
obtain the gun, she stabs him to death.
– Under traditional common law rules, D’s self-defense
claim would likely fail because V did not yet represent an
imminent harm since he is unarmed.
– Under the MPC, D’s act would be justifiable if she
believed that she could not afford to wait until V returned
with the weapon – i.e., that force was immediately
necessary.
Deadly force under the MPC
• The appropriateness of the provision on
kidnapping depends on how kidnapping is
defined by state law.
• Prohibition of deadly force in two circumstances:
– Deadly force by aggressors
• Aggressor = a person who, « with the purpose of causing
death or serious bodily injury, provoked the use of force
against himself in the same encounter. »
– Retreat
• A person may not use deadly force against an aggressor if
he « knows that he can avoid the necessity of using such
force with complete safety by retreating. »
• But retreat is not necessary if the actor would have to retreat
from his home or even from his place of work.
Defense of others
• A person is justified in using force to protect a third party
from unlawful use of force by an aggressor
• The intervenor’s right to use force in such
circumstances parallels the third party’s right of selfdefense, that is, the intervenor may use force when,
and to the extent that, the third party would
apparently be justified in using force to protect
herself.
• The alter-ego rule :
– Once applied by a majority of jurisdictions
• An intervenor could only use force to defend a third party if the latter party
would in fact have been justified in using force, and force in the same
degree, in self-defense.
– The modern majority view today is that an intervenor may use
force to the extent that such force reasonably appears to the
intervenor to be justified in defense of the third party.
Defense of others under the MPC
• An intervenor is justified in using force upon
another person in order to protect a third party if
three conditions are met:
– The intervenor uses no more force to protect the third
party that he would be entitled to use in self
protection, based on the circumstances as he
believes them to be
– Under the circumstances as the intervenor believes
them to be, the third party would be justified in using
such force in her self defense
– The intervenor believes that intervention is necessary
for the third party’s protection
Defense of property
• A person in possession of real or personal
property is justified under common law and
modern statutes in using nondeadly force against
a would-be dispossessor if he reasonably
believes that such force is necessary to prevent
imminent, unlawful dispossession of the property.
– Possession vs. title of property
– Necessity for the use of force: a person may use no
more force than reasonably appears necessary to
defend his possessory interest in the property
– Deadly force: deadly force is never permitted in
defense of property, even if it is the only means
available to prevent the loss
Example
• V threatens to steal D’s property. D resists
by use of moderate nondeadly force. In an
effort to overcome D’s lawful resistance, V
pulls a knife and threatens to stab D.
• May D use deadly force against V?
Recapture of property
• A person may not ordinarily use force to
recapture property of which he has been
unlawfully dispossessed.
• Exception : a person who acts promptly
after dispossession may use non-deadly
force, as reasonably necessary, to regain
or recapture his property.
Defense of habitation
• State v. Boyett
• Middle approach
– A person may only use deadly force if he reasonably believes that
(1) the other person intends an unlawful and imminent entry of the
dwelling, (2) the intruder intends to injure him or another occupant,
or to commit a felony therein, and (3) the deadly force is necessary
to repel the intrusion
• Narrow approach
– A person is only justified in using deadly force upon another if he
reasonably believes that: (1) the other person intends an unlawful
and imminent entry of the dwelling, (2) the intruder intends to
commit a forcible felony therein and (3) such force is necessary to
prevent the intrusion
• A forcible felony is one committed « by forcible means, violence, and
surprise, such as murder, robbery, burglary, rape or arson. »
• May the occupant use force after the
intruder has entered?
• The reasonableness of the belief is for the
jury to decide
• Timing issues and reasonableness issues
MPC defense of habitation
• Permissible use of nondeadly force
– A person may use nondeadly force upon another person to
prevent or terminate an entry or other trespass upon land, or to
prevent the carrying away of personal property, if he believes that
three conditions exist: (1) the other person’s interference with the
property is unlawful, (2) the intrusion affects property in the actor’s
possession, or in the possession of someone else for whom he
acts, and (3) nondeadly force is immediately necessary.
– A person may use nondeadly force to re-enter the land or to
recapture personal property if (1) he believes that he or the other
person for whom he is acting was unlawfully dispossessed of the
property and either (2a) the force is used immediately after
dispossession or (2b) even if it is not immediate, he believes that
the other person has no claim of right to possession of the
property.
• In 2(b), re-entry of the land is not permitted unless the actor also
believes that it would constitute an « exceptional hardship » to delay
re-entry until he can obtain a court order.
• Impermissible use of nondeadly force
– Nondeadly force that is otherwise permitted in defense
of property is unjustified in three circumstances:
• Force is not « immediately necessary » unless the defender
first requests desistance by the interfering party. A request is
not required if the defender believes that a request would be
useless, dangerous to himself or to another, or would result in
substantial harm to the property before the request can
effectively be made.
• A person may not use force to prevent or terminate a trespass
to personal or real property if he knows that to do so would
expose the trespasser to a substantial risk of serious bodily
injury.
• If the dispossessor of land or personal property and the person
seeking to regain it both believe that they have a right to the
property in dispute, the original disposssessor must forego the
use of force and permit the recapture to occur.
• Use of deadly force
– A person may use deadly force upon an intruder if he
believes that (1) the intruder is seeking to disposess
him of the dwelling, (2) the intruder has no claim of
right to possession of the dwellling, and (3) such force
is immediately necessary to prevent dispossession
– A person may use deadly force in protection of
property interests inside a dwelling, or anywhere else,
if he believes that (1) the other person is attempting to
commit or consummate arson, burglary, robbery,
felonious theft or property destruction, (2) such force
is immediately necessary to prevent commission or
consummation of the offense and either (3a) the other
person previously used or threatened to use deadly
force against him or another person in his presence,
or (3b) use of nondeadly force to prevent commission
or consummation of the offense would expose him or
another innocent person to substantial danger of
serious bodily injury.
Necessity
• A seaman violates an embargo by putting into a
foreign port due to dangerous and
unforeseeable weather conditions
• A person drives on a suspended license in order
to take a loved one to the hospital in a lifeendangering emergency
• A motorist exceeds the speed limit in order to
pass another car and move to the right lane, so
that an emergency vehicle can pass
• Nelson v. State & People v. Unger
Necessity
• Some states limit the defense to emergencies
created by natural forces (as opposed to human
forces)
• Conditions :
– The actor must be faced with a clear and imminent
danger
– There must be no effective legal way to avert the harm
– The harm that the defendant will cause by violating the
law must be less serious than the harm that he seeks to
avoid
– The defendant must come to the situation with « clean
hands »
– The lawmakers must not have previously anticipated the
choice of evils and determined the balance to be struck
between the competing values in a manner in conflict with
the defendant’s choice
Necessity as a defense to
homicide?
• Regina v. Dudly and Stephens (1884): a
person may not justifiably kill an innocent
person in order to save a greater number
of innocent lives.
• How should the case be decided?
– Utilitarian vs. Kantian approach
Necessity under the MPC
• A person’s conduct is justified if (1) he
believes that his conduct is necessary to
avoid harm to himself or another, (2) the
harm to be avoided by his conduct is
greater than sought to be avoided by the
law prohibiting his conduct, and (3) no
legislative intent to exclude the conduct in
such circumstances plainly exists.
Duress
• United States v. Contendo-Pachon
• A person will be acquitted of any offense except murder if
the criminal act was committed under the following
circumstances:
– Another person threatened to kill or grievously injure the actor or a
third party, particularly a near relative, unless she committed the
offense
– The actor reasonably believed that the threat was genuine
– The threat was « present, imminent, and impending » at the time of
the criminal act
– There was no reasonable escape from the threat except through
compliance with the demands of the coercer
– The actor was at no fault in exposing herself to the threat
• The common law rule, adopted in 17
states, is that duress is not a defense to
intentional killing. A few states recognize
an imperfect duress defense, which
reduces the offense of the coerced actor
to manslaughter.
• Duress defense in felony-murder
prosecution?
Duress under the MPC
• Duress is an affirmative defense to unlawful conduct by
the defendant if (1) she was compelled to commit the
offense by the use, or threatened use, of unlawful force
by the coercer upon her or another person, and (2) the
person of reasonable firmness in her situation would have
been unable to resist the coercion.
• The defense is unavailable if the actor recklessly placed
herself in a situation in which it was probable that she
would be subjected to coercion
• Comparison to common law:
– Abandons the common law requirement that the defendant’s
unlawful act be a response to an imminent deadly threat.
– The defense is one of general applicability, so the defense may
be raised in murder prosecutions.
– The Code does not require that the imperiled person be the
defendant or a member of her family.